Articles Posted inCohabitation Agreements

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.

More importantly, however, even than maintaining the option of domestic partnerships, is to broaden the narrow terms of the debate. Conservatives want a narrow definition of marriage as only between one man and one woman. The LGBT movement has focused solely on marriage equality. Both are too limiting, since a fundamental problem with marriage is that it only comes in one size as a legal relationship. But as a personal relationship, marriage or its equivalents, is unique and personal and often sacred. Marriage, civil unions and the like, just as any contract or partnership agreement, should be as flexible as a business contract in enabling the participants to create an agreement that is tailored to their needs and circumstances and reflects their values and goals.

Therefore, the struggle for marriage equality should perhaps also include efforts to obtain legal recognition for a wider range of relationships, households and families, regardless of conjugal status. Marriage is not the only form of family or relationship worthy of legally and economically privileged status above others and by making marriage the goal, those who live in non-nuclear families are excluded. This might include blended families, unmarried couples, adult children living with and caring for their parents, grandparents living with and caring for their grandchildren, close friends or siblings in non-conjugal relationships serving as each other’s primary support and caregivers.

This is reflected in the lawsuit of Kody Brown and his four wives from the reality TV show, Sister Wives, challenging the Utah polygamy law. Bigamy is a third-degree felony in Utah, and a person can be found guilty of bigamy through cohabitation, not just legal marriage contracts. The Browns’, Jonathan Turley, attorney claims that the state is persecuting citizens for living their religious values and the lawsuit seeks to protect a person’s right to be left alone. Prosecutors claim the family is committing a felony every night on television. Brown and his ‘wives’ are relying on the Supreme Court’s 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that the state could not prosecute people for engaging in private, consensual sexual behavior – in that case, gay sex.

In Lawrence v. Texas the U.S. Supreme Court held, specifically, that “[t]his case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.”

Similarly, the relationship between Brown and his wives appears that it does not (directly) involve minors or those who might be injured, a lack of consent or inappropriate public conduct, and would seemingly be entitled to engage in their private conduct without government intervention.

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.

More importantly, however, even than maintaining the option of domestic partnerships, is to broaden the narrow terms of the debate. Conservatives want a narrow definition of marriage as only between one man and one woman. The LGBT movement has focused solely on marriage equality. Both are too limiting, since a fundamental problem with marriage is that it only comes in one size as a legal relationship. But as a personal relationship, marriage or its equivalents, is unique and personal and often sacred. Marriage, civil unions and the like, just as any contract or partnership agreement, should be as flexible as a business contract in enabling the participants to create an agreement that is tailored to their needs and circumstances and reflects their values and goals.

Therefore, the struggle for marriage equality should perhaps also include efforts to obtain legal recognition for a wider range of relationships, households and families, regardless of conjugal status. Marriage is not the only form of family or relationship worthy of legally and economically privileged status above others and by making marriage the goal, those who live in non-nuclear families are excluded. This might include blended families, unmarried couples, adult children living with and caring for their parents, grandparents living with and caring for their grandchildren, close friends or siblings in non-conjugal relationships serving as each other’s primary support and caregivers.

This is reflected in the lawsuit of Kody Brown and his four wives from the reality TV show, Sister Wives, challenging the Utah polygamy law. Bigamy is a third-degree felony in Utah, and a person can be found guilty of bigamy through cohabitation, not just legal marriage contracts. The Browns’ attorney, Jonathan Turley, claims that the state is persecuting citizens for living their religious values and the lawsuit seeks to protect a person’s right to be left alone. Prosecutors claim the family is committing a felony every night on television. Brown and his ‘wives’ are relying on the Supreme Court’s 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that the state could not prosecute people for engaging in private, consensual sexual behavior – in that case, gay sex.

In Lawrence v. Texas the Supreme Court held, specifically, that “[t]his case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.”

Similarly, the relationship between Brown and his wives does not (directly) involve minors or those who might be injured, a lack of consent or inappropriate public conduct, and would seemingly be entitled to engage in their private conduct without government intervention.

California does not recognize community property rights between cohabiting couples and does not recognize “common law marriage”, and therefore does not protect those who opt out of traditional marriage or registered domestic partnerships. There are no automatic property rights or support rights under the California Family Code for unmarried cohabitants. Though there may be judicial recognition and enforcement of express or implied agreements between unwed cohabitants, such as breach of contract, partnership theories, constructive trust, declaratory relief, specific performance, quantum meruit and other equitable remedies, the legal process to obtain such recognition is likely to be emotionally torturous and very costly in the absence of a clear, written agreement.

Therefore, it is important for unmarried couples living together to discuss and reach agreements on financial and property rights if the relationship ends. These agreements should be reflected in a cohabitation agreement and testamentary documents such as wills or trusts.

Palimony is a combination of the words pal and alimony coined by celebrity divorce attorney Marvin Mitchelson in 1977 when his client Michelle Marvin (Marvin v. Marvin, 8 Cal. 3d 660 (Cal. 1976) filed an unsuccessful suit against the actor Lee Marvin. Palimony is a popular term, not a legal term, and is often used to describe the division of financial assets and real property when parties end an unmarried domestic relationship. Unlike alimony or spousal support, which is often provided for by law, palimony is not guaranteed to unmarried partners. There must be a clear agreement, written or oral, by both partners stipulating the extent of financial sharing and/or support in order for palimony to be granted. Palimony cases are determined in civil court as a contract matter, rather than in family court, as in cases of divorce.

In 1971, Michelle Marvin claimed that Lee Marvin, who was still married to someone else at the time they began living together, promised to support her for the rest of her life. In the end, in Marvin v. Marvin, the California Supreme Court ruled that Michelle Marvin had not proven the existence of a contract between herself and Mr. Marvin that gave her an interest in his property. Thus, the common law rule applied and she was only entitled to the property that she brought to the relationship.

The Court explained that while the state abolished common law marriage in 1896, California law recognizes non-marital relationship contracts. These contracts may be express or implied, oral or written–but either way, they must be provable. Michelle Marvin did not meet her burden of proof. The contract may also provide for a sexual relationship as long as it is not a contract for sexual services. Eventually, the California Court of Appeal ruled that since Michelle and Lee Marvin never had a contract, she was not entitled to any money.

Consequently, cohabitation agreements are important and are particularly important if one or both has significant assets or debts, owns a property or business, or has children from a previous relationship. In addition, a cohabitation agreement can provide clarification and understanding on issues such as how income and expenses are handled and provide clarity on division of property and support if the relationship ends. This is especially important if there is an income disparity or if one person is sacrificing income to raise children.

For example, one partner stays at home to raise children while the other earns a substantial income and acquires significant assets during the relationship which ends. A married partner in California has the community property law of equitable distribution to protect her interest in half of the assets earned and the right to spousal support. The unmarried partner has nothing except for the ability to obtain child support if the children are still minors.

In addition to the legal protection provided by unmarried partners setting forth their rights and obligations in a cohabitation agreement; the process of creating the agreement provides an opportunity for couples to discuss the role of money in their lives gain clarity and understanding that benefits the relationship.